264 Pa. 286 | Pa. | 1919
Opinion by
The deceased was employed as a foreman in charge of riveters by Gibbs & Hill, contractors, who were engaged by the appellant to construct its electrification system on its main line from Broad Street Station to Paoli. The work of the contractors as it related to the foreman’s duties was located between Eighteenth and Twentieth streets and consisted in the building of foundations for signal towers. The railroad between Broad and Twentieth streets is elevated and the foundations were outside the line of the elevated structures and below the level of the tracks. The deceased, on the night of the accident, had three or four gangs working at different places underneath or below the level of the tracks. It was his duty to inspect the work of these men and see that they were supplied with tools and rivets. In going to the points at which his men were located he could walk along the tracks next to Filbert street, using a boardwalk some three feet in width, or he could walk on the tracks, or cross the tracks. To descend below the tracks he would climb over the railing which runs along the boardwalk
There were three trials in the court below. The first resulted in a disagreement of the jury; the second in a compulsory nonsuit, later taken off; and the third in a verdict for the appellee upon which judgment was entered. The assignments of error complain of the refusal of the court below to direct a verdict for the defendant and to sustain its motion for judgment n. o. v.
We may assume, for the purposes of this case, that the defendant was negligent; just in what particular, does not definitely appear. The deceased was fully acquainted with his working conditions, the boardwalk and the track at the place where he was killed; moreover, he was walking in the direction from which the train, with headlight burning and bell ringing, was approaching. What additional warning he needed, or what good the services of a watchman might have been, does not appear. Since there are many tracks between Eighteenth and Twentieth streets and plaintiff was at liberty to cross
We are of the opinion that the court below erred in not sustaining the defendant’s point for binding instruction. The judgment of the court below is reversed and the record is remitted with direction to enter judgment n. o. v.